After the Centers for Medicare and Medicaid Services (CMS) instructed Humana and other Medicare Advantage (MA) organizations to cease sending health care reform mailings to Medicare beneficiaries, numerous conservative media figures -- including several Fox News hosts -- have advanced the talking point that the Obama administration is "threatening" or "suppress[ing] free speech" rights of reform opponents, in a manner Glenn Beck said "sounds like Joe McCarthy," often failing to note CMS' rationale. In fact, CMS expressed concern that the mailings -- which directed beneficiaries to contact Congress in opposition to Medicare Advantage payment cuts -- is "misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance."

Beck: "Boy, it sounds like Joe McCarthy, doesn't it?" Citing the Humana story, Glenn Beck stated on his radio program, "Now you tell me. Is this government encouraging freedom of speech? Encouraging diversity and diverse thought? Or are they trying to stomp down any -- using the arm -- the investigative arm of the federal government to shut you up. Boy, it sounds like Joe McCarthy, doesn't it?" [Premiere Radio Networks' The Glenn Beck Program, 9/23/09]

Dobbs: Obama administration "is threatening health companies ... with lawsuits for opposing the legislation." During his CNN program, Lou Dobbs claimed it was a "fact that the Obama administration is threatening health companies -- health care companies like Humana with lawsuits for opposing the legislation and the initiative, particularly charging Humana with scaring seniors." [Lou Dobbs Tonight, 9/22/09]

WSJ editorial: Baucus targeting Humana "for daring to criticize one part of his health bill." A Wall Street Journal editorial asserted that in calling for CMS to scrutinize the Humana mailings, Sen. Max Baucus (D-MT) is using "bullying tactics" because "the Senate Finance Chairman has sicced federal regulators on the insurer Humana Inc. for daring to criticize one part of his health bill" and that Baucus was "playing the role of Congressional censor." The editorial concluded that "Humana merely made the mistake of trying to tell seniors the truth" and that Baucus and the Obama administration intend to make Humana "an object lesson to the rest of the business class, and that means they won't stop until Humana cries uncle or is ruined." The editorial noted that CMS said the mailer may violate laws relating to marketing for a program that is publicly funded. [Wall Street Journal, 9/22/09]

Limbaugh: "In addition to fascist, this is Stalinist, and that's who these people are." Asserting that "[t]his infuriated me when I heard about this," Rush Limbaugh quoted the Wall Street Journal editorial and stated, "In addition to fascist, this is Stalinist, and that's who these people are." Limbaugh noted, as the Journal editorial did, CMS' concern about potential violations of regulations for federal health programs. [Premiere Radio Networks' The Rush Limbaugh Show, 9/22/09]

Fox & Friends: "We're talking about chilling a First Amendment" with "gag order." During a discussion with Fox News legal analyst Peter Johnson Jr., Fox & Friends co-host Steve Doocy asked, "Is this a government gag order?" and later asserted, "[I]t is a scary day in America when, as you say, this information from Humana is absolutely accurate, and for the federal government ... to come out and shut down debate because it's not helpful to the president's plan, that is, to use your word from earlier, chilling." Johnson Jr. stated, "For a government to say to a private corporation, you don't have the right to contact your subscribers and inform them truthfully, as it is, about a public policy change that will dramatically affect their health care, that is a frightening prospect." He added, "We are talking about gag order, we're talking about prior restraint, we're talking about chilling a First Amendment right to free speech, we're talking about destroying the dialogue." During a separate discussion, contributor Jonathan Hoenig stated of the Humana story, "I thought free speech was protected in this country," and that "all Humana is doing is simply trying to inform their customers that, yep, a change is coming, and maybe you ought to call your congressman ... and let them know that you don't want a government takeover of health care." Hoenig later asked, "[I]sn't this government cracking down on dissenting opinion?" [Fox & Friends, 9/23/09]

Hemmer: "Is the White House trying to silence certain health insurance companies?" Fox News host Bill Hemmer asked, "Is the White House trying to silence certain health insurance companies with the threat of legal action?" His guest, Mike Tuffin of America's Health Insurance Plans, stated that "a gag order [has been] issued from Washington," adding that "the timing of this and the tenor of it -- it has a chilling effect on free speech." Hemmer read a statement from Humana but did not provide the rationale given by CMS for its actions. [America's Newsroom, 9/22/09]

NewsBusters' Baker: Obama abusing power "to suppress free speech." In a September 23 blog post, NewsBusters senior fellow Brent Baker characterized the Obama administration's move as "using the full power of a federal regulatory agency to suppress free speech -- specifically, to silence Humana's predictions about the impact of proposed ObamaCare cuts to the Medicare Advantage program." Baker further asked, "[W]ill the media champion free speech and be outraged by the abuse of power to suppress it, or will most journalists not mind the government hushing voices which go against Obama?" [NewsBusters, 9/23/09]

Hot Air's Morrissey: White House "should spend a little time re-reading the First Amendment." In a September 21 Hot Air blog post, contributor Ed Morrissey asserted that Humana "had the temerity to commit the heinous act of free speech with their customers." The blog post further stated, "Only a government afraid of its people and afraid of the truth would turn that kind of communication into a crime. Maybe HHS and the White House should spend a little time re-reading the First Amendment instead of attempting to intimidate people out of the political debate, especially the stakeholders." [Hot Air, 9/21/09]

CMS concerned that the mailing was misleadingly represented "as official communications" about MA. In its September 18 letter to Humana, CMS stated that the mailer -- which claimed that under health care reform, "millions of seniors and disabled individuals could lose many of the important benefits and services" of Medicare Advantage and instructed beneficiaries to contact Congress -- was included "in an envelope that states it contains 'important information about your Medicare Advantage plan -- open today!' " The CMS letter further expressed concerns that the Humana mailer may be "contrary to federal regulations and guidance" for federal health programs:

CMS has learned that Humana has been contacting enrollees in one or more of its plans and alleging that current health care reform legislation affecting Medicare could hurt "millions of seniors and disabled individuals [who] could lose many of the important benefits and services [emphasis in original document] that make Medicare advantage health plans so valuable. The message, which is included in an envelope that states it contains -important information about your Medicare Advantage plan-open today!," makes several other claims about the legislation and how it will be detrimental to enrollees, ultimately urging enrollees to contact their congressional representatives to protest the actions referenced in the letter (see attachment).

CMS is concerned that, among other things, this information is misleading and confusing to beneficiaries, represents information to beneficiaries as official communications about the Medicare Advantage program, and is potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA. As we continue our research into this issue, we are instructing you to end immediately all such mailings to beneficiaries and to remove any related materials directed to Medicare enrollees from your website. [emphasis in original]

CMS: Mailer claimed to provide Medicare information but instead offered Humana's "opinion and conjecture." In a September 21 memo, CMS instructed all Medicare Advantage organizations to discontinue mailings similar to Humana's and "remove any related materials directed to Medicare enrollees from your websites." The memo stated that CMS was "concerned about the recent mailings as they claim to convey legitimate Medicare program information about an individual's specific benefits or other plan information but instead offer misleading and/or confusing opinion and conjecture by the plan about the effect of health care reform legislation on the MA program and other information unrelated to a beneficiary's specific benefits."

From the September 21 CMS memo:

Our priority is ensuring that accurate and clear information about the MA program is available to our beneficiaries. Thus, we are concerned about the recent mailings as they claim to convey legitimate Medicare program information about an individual's specific benefits or other plan information but instead offer misleading and/or confusing opinion and conjecture by the plan about the effect of health care reform legislation on the MA program and other information unrelated to a beneficiary's specific benefits. Further, we believe that such communications are potentially contrary to federal regulations and guidance for the MA and Part D programs and other federal law, including HIPAA.

CMS investigation centers on Humana's use of "lists of Medicare enrollees for unauthorized purposes." CMS stated in a September 21 press release that "CMS is investigating whether Humana inappropriately used the lists of Medicare enrollees for unauthorized purposes." The press release also quoted CMS official Jonathan Blum's statement that "[w]e are concerned that the materials Humana sent to our beneficiaries may violate Medicare rules by appearing to contain Medicare Advantage and prescription drug benefit information, which must be submitted to CMS for review."

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